Elhady v. Kable, No. 20-1119 (4th Cir. 2021)Annotate this Case
Plaintiffs, twenty-three individuals who allege they are in the Terrorist Screening Database (TSDB), filed suit alleging that the TSDB program violates the Fifth Amendment's Due Process Clause by failing to include more procedural safeguards.
The Fourth Circuit reversed the district court's grant of summary judgment in favor of plaintiffs and concluded that plaintiffs have not demonstrated infringements of constitutional liberty interests under the Due Process Clause. The court explained that history and precedent reveal that the government possesses latitude in regulating travel, guarding the nation's borders, and protecting the aspirations of the populace for tranquility and safety. In this case, the typical delay pleaded by plaintiffs, which is around an hour or less at an airport, does not rise up to the level of constitutional concern. The court reasoned that these delays are not dissimilar from what many travelers routinely face, whether in standard or enhanced screenings, particularly at busy airports. Even if the court accepted plaintiffs' assertions that these inconveniences have actually deterred them from flying, the court stated that individuals do not have a protected liberty interest to travel via a particular mode of transportation. Furthermore, plaintiffs do not possess a protected liberty interest in being free from screening and delays at the border.
The court also concluded that inclusion in the TSDB does not infringe on plaintiffs' constitutionally protected interest in their reputations. The court rejected plaintiffs' contention that inclusion in the TSDB stigmatizes them by associating them with terrorism. The court explained that plaintiffs have not shown adequate "public disclosure" by the government and the government does not publicly disclose TSDB status. Furthermore, the Supreme Court has explained that stigma or "reputation alone, apart from some more tangible interests such as employment," is not "liberty" within the meaning of the Due Process Clause. The court further explained that the government's act of including names in the TSDB does not mandate that private entities deny people rights and privileges. In this case, plaintiffs have not adequately demonstrated denials of employment, permits, licenses, or firearms. The court explained that speculation coupled with a few isolated incidents inadequately tethered to TSDB status is not enough. Finally, the court doubted plaintiffs' claims as to the adequacy of existing processes where the government's interest is extraordinarily significant in this case, the weight of the private interests at stake is comparatively weak, and the court would not casually second-guess Congress's specific judgment as to how much procedure was needed in this context.